representing homeowners

Schwend v US Bank: “It is Not at All Clear Who US Bank Was a Successor To”

In Missouri federal district court, the judge denied US Bank’s motion to dismiss a wrongful foreclosure case, finding that the plaintiff’s claims were plausible on their face and stating:

Additionally, based on the record now before me, there is no evidence that defendants had the power to foreclose upon Schwend’s property. The original deed of trust lists Lenders Management Corp. as the trustee, but defendant U.S.Bank, through its agent Kozeny & McCubbin, foreclosed on Schwend’s property in 2009. The Appointment of Successor Trustee form lists the grantor as:November 1, 2004. Asset-Backed Pass-Through Certificates Series 2004-WWF1See, e.g., Cobe v. Lovan, 92 S.W. 93,97 (Mo. 1906) (foreclosure sale void when foreclosing defendant did not hold title to the note).

As plaintiff points out, it is not at all clear who US Bank was a successor to, since “Wachovia Bank, N.A. Pooling and Servicing Agreement dated as of November 1,2004. Asset-Backed Pass-Though Certificates Series 2004-WWF1” does not appear to refer to an entity who could be a trustee or security holder, but rather appears to refer to an agreement of some sort. More importantly, there is nothing in the record to show how US Bank, Wachovia Bank, or “Pooling and Servicing Agreement dated as of November 1, 2004” came to be the holder of this note. As noted above, the original lender shown in the Deed of Trust is Argent Mortgage Company LLC and the original trustee is Lenders Management Corp. The forbearance agreement that Schwend later signed is with America’s Servicing Company. From the record here it is not at all clear that US Bank was the lawful holder of the note with the power to foreclose, and if it was not, the claim for wrongful foreclosure is more than plausible.